Health System Partner Terms of Service
THESE TERMS OF SERVICE ARE INTENDED FOR HEALTH CARE PROVIDERS ONLY.
IF YOU ARE AN EHR SYSTEM PROVIDER, CONSULTANT, OR OTHER SERVICE PROVIDER THAT IS INTEGRATING OR OTHERWISE ACCESSING THE ALARA OFFERINGS ON BEHALF OF A HEALTHCARE PROVIDER, YOU WILL NEED TO AGREE TO THE ALARA INTEGRATION PARTNER TERMS OF SERVICE [www.alaragateway.com/legal-pages/terms-of-service-integration-partner].
Alara Imaging
Health Care Provider Terms of Service
Last Updated: 11/13/23
Welcome, and thank you for your interest in Alara Imaging, Inc. (“Alara,” “we,”or “our”, “us”) and our Alara Gateway software application available at https://alaracare.com (or accessible through the CMS ECQI Resource Center located at https://ecqi.healthit.gov), along with certain related services or other software applications offered by us. These Health Care Provider Terms of Service are a legally binding contract between the entity, organization, or company that you are accepting these terms on behalf of (“you”) and Alara regarding your use of the Alara Gateway, including to access the Measures and other Services that Alara may offer in connection with the Alara Gateway.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE ALARA GATEWAY, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OFTHE ALARA OFFERINGS, YOU ACKNOWLEDGE THAT YOU ARE A HEALTH CARE PROVIDER AND AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING THE BUSINESS ASSOCIATE AGREEMENT [www.alaragateway.com/legal-pages/business-associate-agreement] (the “BAA”) AND ALARA’S PRIVACY POLICY [www.alaragateway.com/legal-pages/privacy-policy] (TOGETHER, THIS “AGREEMENT”). If you are not eligible, or do not agree to this Agreement, then you do not have our permission to use the ALARA OFFERINGS. YOUR USE OF THE ALARA OFFERINGS, AND ALARA’S PROVISION OF THE ALARA OFFERINGS TO YOU, CONSTITUTES AN AGREEMENT BY ALARA AND BY YOU TO BE BOUND BY THIS AGREEMENT.
1. DEFINITIONS
1.1 “Alara Gateway” means Alara’s proprietary software provided to you pursuant to this Agreement.
1.2 “Alara Offerings” means the Alara Gateway and associated Services, collectively.
1.3 “CMS” means the Centers for Medicare & Medicaid Services.
1.4 “CMS-Formatted Measure Data” means Primary Data which has been modified by the Alara Gateway into a data format that CMS can process, including CT Dose andImage Quality Category, Calculated CT Size-Adjusted Dose, and Calculated CT Global Noise.
1.5 “Confidential Information” means any information (including combinations of individual items of information) that relates to the actual or anticipated business, research, or development of either party and any proprietary information, trade secrets, and know-how of a disclosing party that is disclosed to a receiving party in connection with this Agreement, whether directly or indirectly, in writing, orally, or by inspection or observation of tangible items, including but not limited to, research, product plans, products, services, customer lists, development plans, inventions, processes, formulas, technology, designs, drawings, marketing, finances, and other business information; provided however that Confidential Information does not include any information that: (a) was publicly known and made generally available in the public domain prior to the time a party disclosed the information to the receiving party, (b) became publicly known and made generally available, after disclosure to the receiving party by the disclosing party, through no wrongful action or inaction of the receiving party or others who were under confidentiality obligations, (c) was in the receiving party’s possession, without confidentiality restrictions, at the time of disclosure by the disclosing party, as shown by the receiving party’s files and records; or (d)was independently developed by a party without use of or reference to the other party’s Confidential Information.
1.6 “CT” means computed tomography.
1.7 “Documentation”means the user documentation, in all forms, provided by Alara relating to the Alara Gateway (e.g., user manuals, education materials, on-line help files).
1.8 “Health Care Provider” has the meaning ascribed to it in 45 CFR § 160.103.
1.9 “Integration Partner” means your EHR system provider, consultant, or other service provider that has agreed to the Alara Integration Partner Terms ofService, located at [URL](“Integration Partner Terms”).
1.10 “Materials” means visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Alara Gateway and Documentation, provided by Alara.
1.11 “Measures” means electronic clinical quality measures (eCQM) that provide a standardized method for monitoring the performance of diagnostic CT scans to discourage unnecessarily high radiation doses, while preserving adequate image quality.
1.12 “Order Form” means the ordering document entered into by you and Alara describing the Services that Alara will provide.
1.13 “Primary Data” means any raw data, information, or material that you input or is otherwise transmitted into the Alara Gateway.
1.14 “Services” means additional proprietary offerings made available by Alara from time to time, as further described in an executed Order Form between you and Alara.
1.15 “Technology Partner” means a technology company or service provider that offers Services that are facilitated by the Alara Gateway that has agreed to the Alara Technology Partner Terms of Service, located at [URL] (“Technology Partner Terms”).
1.16 “Unauthorized Use” means any use, reproduction, distribution, disclosure, possession, examination, or other activity involving any part of the Alara Offerings or Documentation that is not expressly authorized under this Agreement.
1.17 “Usage Data” means information related to any use of or interaction with the Alara Offerings, including log data and an identification of devices, systems, application software and peripherals.
2. DISCLAIMERS
2.1 ALARA IS NOT RESPONSIBLE FOR ANYUSE OF CMS MEASURES. ALARA MAKES NO REPRESENTATIONS, WARRANTIES, OR ENDORSEMENT ABOUT THE QUALITY OF ANY ORGANIZATION OR PHYSICIAN THAT USES OR REPORTS PERFORMANCE MEASURES, AND ALARA HAS NO LIABILITY TO ANYONE WHO RELIES ON SUCH MEASURES OR SPECIFICATIONS.
2.2 THE MEASURES ARE NOT A CLINICAL GUIDELINE, DO NOT ESTABLISH A STANDARD OF MEDICAL CARE, AND HAVE NOT BEEN TESTED FOR ALL POTENTIAL APPLICATIONS.
2.3 ALARA, THE UNIVERSITY OF CALIFORNIA SAN FRANCISCO, AND ITS MEMBERS AND USERS SHALL NOT BE RESPONSIBLE FOR ANY USE OR ACCURACY OF THE MEASURES OR ANY CODE CONTAINED WITHIN THE ALARA GATEWAY. THE MEASURES, ALARA GATEWAY, AND SPECIFICATIONS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND.
2.4 LIMITED PROPRIETARY CODING IS CONTAINED IN THE MEASURES SPECIFICATIONS FOR CONVENIENCE. USERS OF THE PROPRIETARY CODE SETS SHOULD OBTAIN ALL NECESSARY LICENSES FROM THE OWNERS OF THESE CODE SETS. ALARA DISCLAIMS ALL LIABILITY FOR USE OR ACCURACY OF ANY THIRD-PARTY CODE CONTAINED IN THE SPECIFICATIONS. CPT® CONTAINED IN THE MEASURE SPECIFICATIONS IS COPYRIGHT 2004-2023 AMERICAN MEDICAL ASSOCIATION. LOINC® IS COPYRIGHT 2004-2023 REGENSTRIEF INSTITUTE, INC. SNOMED CLINICAL TERMS® (SNOMEDCT®) IS COPYRIGHT 2004-2023 INTERNATIONAL HEALTH TERMINOLOGY STANDARDS DEVELOPMENT ORGANISATION. ICD-10 IS COPYRIGHT 2023 WORLD HEALTH ORGANIZATION. ALL RIGHTS RESERVED.
2.5 For the latest description of theMeasures and related disclaimers, please check eCQM resource center at https://ecqi.healthit.gov/. Any later descriptions or disclaimers of the Measures are hereby incorporated by reference into this Agreement and will amend and restate the disclaimers contained herein.
2.6 These disclaimers are supplemented by, and incorporated by reference in, the additional disclaimers set forth inSection 11.2.
3. OVERVIEW; ACCOUNTS; INSTALLATION
3.1 Summary. We will provide free access to use the Alara Gateway as required by the Measures authorized by CMS. The Alara Gateway links Primary Data elements, assesses CT scans for eligibility for inclusion in the Measure, and generates three data elements as CMS-Formatted Measure Data. To access the Alara Gateway, you must log in through a secure portal and run the Alara Gateway. The Alara Gateway runs automatically to create the data elements required for the Measures and generates CMS-Formatted Measure Data.
3.2 Additional Services. To access any additional Services we may offer, you must first enter into an Order Form with Alara. Upon execution of such Order Form, we will provide access to use of Services described in the applicable Order Form, subject to your compliance with this Agreement.
3.3 Eligibility. By agreeing to this Agreement, (a) you represent and warrant to us that: (i) you are a Health Care Provider, (ii) your registration and your use of the Alara Offerings is in compliance with any and all applicable laws and regulations, (iii) this Agreement has been duly authorized and approved by you, and (iv) this Agreement constitutes a valid and binding obligation between you and Alara; and (b) the individual or entity, including any of your agents, accepting this Agreement on your behalf represents and warrants to us that: he, she, or it has full authority to (i) accept this Agreement on your behalf, (ii) make binding representations through the Alara Offerings on your behalf, and (iii) act, including by executing documents, or otherwise interacting with or operating the Alara Offerings, on your behalf.
3.4 Accounts and Registration.To access most features of the Alara Offerings, you must register for an account. When you register for an account, you may be required to provide us with some information about the Health Care Provider that is entering into this Agreement, such as your legal name, name of your authorized representative, address, phone number, email address, or other contact information. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us.
3.5 Professional Services. If you require any additional support or professional onboarding services from Alara when implementing the Alara Gateway, Alara may, but is not obligated to, provide such support at Alara’s then-current rates.
3.6 Access to Data Feeds. After installing the Alara Gateway, you will need to connect the Alara Gateway to your healthcare data systems in order to access the Alara Offerings, instructions for which are contained in the Documentation. You are solely responsible for maintaining these data connections to ensure proper operation of the Alara Offerings.
3.7 Email. We may send you emails concerning our products andservices, as well as those of third parties. You may opt out of promotionalemails by following the unsubscribe instructions in the promotional emailitself.
4. LICENSES
4.1 License to the Alara Gateway. During the Term and subject to the terms and conditions of this Agreement, Alara hereby grants you a limited worldwide, non-exclusive, non-transferable license, without the right to sublicense (subject to Section 4.5), to download, install, access, and use the Alara Gateway for use in connection with any Alara Offerings.
4.2 License to the Services. If you and Alara execute an Order Form for additional Services, then during the duration specified in the Order Form and subject to the terms and conditions of this Agreement, Alara hereby grants you a limited worldwide, non-exclusive, non-transferable license, without the right to sublicense (subject to Section 4.5), to access and use the Services specified in the executed Order Form.
4.3 License to the Documentation. During the Term and subject to the terms and conditions of this Agreement, Alara hereby grants you a limited, worldwide, non-exclusive, non-transferable license, without the right to sublicense, to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with your internal use of the applicable Alara Offerings.
4.4 License to the Primary Data. During the Term and subject to the terms and conditions of this Agreement, you hereby grant to Alara a limited, worldwide, non-exclusive, non-transferable license to use, access, capture, copy, store, transmit, maintain, and display the PrimaryData solely to provide the Alara Offerings to you, including the generation of CMS-Formatted Measure Data. You are solely responsible for the Primary Data, including any corruption, loss of data, inaccurate or incomplete data, and compliance with all applicable laws or third-party rights.
4.5 Integration Partners. Subject to their acceptance of and compliance with the Integration Partner Terms, Alara grants you the right to permit your Integration Partners (who are expressly authorized to act on your behalf) to exercise your rights under this Agreement with respect to the Alara Offerings, solely on your behalf. You are solely responsible for your Integration Partners and any breach of this Agreement by your Integration Partner will be deemed your breach.
5. YOUR OBLIGATIONS
5.1 General Restrictions. Except as otherwise explicitly provided in this Agreement, the applicable Order Form, or as may be expressly permitted by applicable law, you will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Alara Offerings; (b) rent, lease, or sublicense the Alara Offerings or Documentation; (c) use the Alara Offerings on a service bureau or application service provider basis; (d) provide, divulge, disclose, make available to, or permit the use of the Alara Offerings by any third party; (e) circumventor disable any technological or security features or measures in the Alara Offerings, including to attempt to discern the source code for the Alara Offerings; or (f) use or access the Alara Offerings for the purposes of developing or contributing to a competitive or similar product or service.
5.2 Proprietary Rights Notices. You will neither alter nor remove any copyright notice or other proprietary rights notices that may appear on the Alara Offerings or Documentation.
5.3 Compliance with Laws. You will use the Alara Offerings and Documentation in compliance with all applicable laws and regulations, including any individual consents, authorizations, or other permissions pursuant to applicable privacy or data security laws, and will refrain from any unethical conduct or any other conduct that tends to damage the reputation of Alara.
5.4 No Warranties. You will not make or publish any representations, warranties, or guarantees on behalf of Alara concerning the Alara Offerings or Documentation without Alara’s specific prior written approval.
5.5 Protection against Unauthorized Use. You acknowledge that the Alara Offerings and any other materials furnished to you by Alara involve valuable proprietary rights of Alara. You will take appropriate steps and precautions to protect the Alara Offerings. Without limiting the generality of the foregoing, you will use your best efforts to prevent any Unauthorized Use and immediately notify Alara in writing of any Unauthorized Use that comes to your attention. In the event of any Unauthorized Use by anyone who obtained access to the Alara Offerings directly or indirectly through you or any of your employees, agents, representatives, or contractors, you will take all steps reasonably necessary to terminate such Unauthorized Use and to retrieve any copy of the applicable Alara Offerings in the possession or control of the person or entity engaging in such Unauthorized Use. You will provide to Alara such cooperation and assistance related to any such Unauthorized Use as Alara may reasonably request.
6. CONFIDENTIALITY
6.1 Non-disclosure and Non-use. The receiving party will not disclose the Confidential Information of the disclosing party to any third party or use such Confidential Information for any purpose other than fulfilling its obligations under this Agreement. Both parties will take all reasonable precautions to prevent any unauthorized disclosure of the other party’s Confidential Information, including, but not limited to, requiring each employee and independent contractor with access to a disclosing party’s Confidential Information to execute a nondisclosure agreement containing terms that are substantially similar to the terms contained in this Agreement. A receiving party will promptly notify the disclosing party upon discovery of any unauthorized disclosure or misuse of the disclosing party’s Confidential Information. The receiving party will not reverse engineer, disassemble, or decompile any prototypes, software, or other tangible objects that embody the disclosing party’s Confidential Information and that are provided to the receiving party in accordance with this Agreement.
6.2 Confidential Information. The Alara Offerings are deemed Alara’s Confidential Information. Primary Data and any personal health information provided pursuant to this Agreement are deemed your Confidential Information.
7. OWNERSHIP
7.1 Reservation of Rights. The Alara Offerings are owned and operated by Alara. The Materials provided under this Agreement are protected by intellectual property rights and other laws. The Alara Offerings and Documentation are licensed, not sold, by Alara to you, and nothing in this Agreement will be interpreted or construed as a sale or purchase of the Alara Offerings or Documentation. You will not have any rights in or to the Alara Offerings or Documentation except as expressly granted in this Agreement. Alara reserves to itself all rights to the Alara Offerings and Documentation not expressly granted to you in accordance with this Agreement. Alara retains all intellectual property rights in and to the Alara Offerings and Documentation. You acknowledge that the Alara Offerings and Documentation, all copies of the Alara Offerings and Documentation, and any know-how and trade secrets related to the Alara Offerings or Documentation are the sole and exclusive property of Alara and contain Alara’s confidential and proprietary materials.
7.2 Feedback. We respect and appreciate the thoughts and comments from our users. If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Alara Offerings and Documentation (“Feedback”), then you hereby grant Alara an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Alara Offerings and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.
7.3 Usage Data. You agree that Alara may collect Usage Data. Alara may use, analyze, compile, and otherwise exploit Usage Data for industry analytics, benchmarking, and to provide, support, enhance and otherwise facilitate the development and improvement of the Alara Offerings and other Alara products, provided that the foregoing is not a license to disclose Usage Data in raw, disaggregated, or non-deidentified form, or to identify you as the source of any Usage Data or conclusions drawn in whole or in part from the Usage Data.
8. THIRD PARTY SERVICES; LINKED WEBSITES
8.1 Third Party Services. Pursuant to an executed Order Form, Alara may provide tools through the Alara Gateway that enable you to export information or otherwise receive access to certain Services that are offered by Alara or a Technology Partner. Your access to any Services provided by a Technology Partner will be governed by a separate agreement between you and the Technology Partner. Services offered by a Technology Partner are not under Alara’s control, and Alara is not responsible for any Service offered by a Technology Partner, notwithstanding that it may be facilitated by the Alara Gateway.
8.2 Linked Websites. The Alara Gateway may also contain links to third-party websites. Linked websites are not under Alara’s control, and Alara is not responsible for their content. Please be sure to review the terms of use and privacy policy of any third-party services before you share any information with such third-party services. Once sharing occurs, Alara will have no control over the information that has been shared.
9.1 General Payment Terms. Certain features of Services provided through the Alara Gateway beyond compliance with Measures may require you to pay fees. Fees will be set forth in the Order Form executed between you and Alara. For clarity, the Alara Gateway is provided to you to comply with the Measures at no cost. All fees are in U.S. Dollars and are non-refundable unless otherwise specifically provided for in the applicable Order Form.
9.2 Price. Alara reserves the right to determine pricing for Services. Alara will provide the pricing and duration of Services in an Order Form. Alara may change the fees for any feature of Services, including additional fees or charges, prior to the renewal of any Order Form. Alara, at its sole discretion, may make promotional offers with different features and different pricing to any of Alara’s customers.
9.3 Delinquent Accounts. Alara may suspend or terminate access to the Alara Offerings, including fee-based portions of our Service, for any delinquent accounts. In addition to the amount due for Services, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any of the unpaid amount, including collection fees. If your payment method is no longer valid at the time any renewal fee is due, then Alara reserves the right to suspend your account without any liability to you.
10. TERM AND TERMINATION; MODIFICATION
10.1 Term. This Agreement is effective beginning when you accept this Agreement or first download, install, access, or use the Alara Gateway (the “Term”) and continue until terminated as provided herein.
10.2 Termination. Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching party, and such termination will take effect when the breaching party receives written notice of termination from the non-breaching party.
10.3 Effect of Termination. Upon termination of this Agreement: (a) your license rights will terminate and you must immediately cease all use of the Alara Offerings; (b) you will no longer be authorized to access your account or the Alara Offerings; and (c) any and all liabilities accrued prior to the effect of termination and Sections 1, 2, 6, 7, 10.3, 11.2, 12, and 13 will survive. You are solely responsible for retaining copies of any Primary Data or CMS-Formatted Measure Data since upon termination of your account, you may lose access rights to the foregoing.
10.4 Modification. Alara reserves the right to modify or discontinue all or any portion of the Alara Offerings at any time (including by limiting or discontinuing certain features), temporarily or permanently, without notice to you; provided however that such modification or discontinuation is in compliance with instructions by CMS. Alara will have no liability for any change to the Alara Offerings, or any suspension or termination of your access to or use of the Alara Offerings. You should retain copies of any Primary Data or CMS-Formatted Measure Data so that you have permanent copies in the event the Alara Offerings are modified in such a way that you lose access to the foregoing.
11. WARRANTIES AND DISCLAIMER
11.1 Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement; and (c) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
11.2 Disclaimer. THE ALARA OFFERINGS, DOCUMENTATION, AND ANY RELATED MATERIALS ARE PROVIDED “AS-IS” AND ON AN “AS AVAILABLE” BASIS. ALARA MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER, INCLUDING WITH RESPECT TO THE ALARA OFFERINGS. ALARA EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. ALARA DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE ALARA OFFERINGS OR AGAINST INFRINGEMENT. ALARA DOES NOT WARRANT THAT THE ALARA OFFERINGS ARE ERROR-FREE ORTHAT OPERATION OF THE ALARA OFFERINGS WILL BE SECURE OR UNINTERRUPTED. ALARA EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON YOUR USE OF THE ALARA OFFERINGS OR ANY DECISIONS YOU MAKE AS A RESULT OF USING THE ALARA OFFERINGS. YOU WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF ALARA TO ANY THIRD PARTY.
NO ADVICE OR INFORMATION OBTAINED BY YOU FROM THE ALARA OFFERINGS, OR ANY ANALYSIS GENERATED THROUGH THE ALARA OFFERINGS, WILL CREATE ANY WARRANTY REGARDING ALARA OR THE ALARA OFFERINGS THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE ALARA OFFERINGS. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE ALARA OFFERINGS AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE ALARA OFFERINGS) OR ANY LOSS OF DATA. THE DISCLAIMERS IN THIS SECTION 11.2 ALSO INCLUDE THE DISCLAIMERS CONTAINED WITHIN SECTION 2, WHICH ARE HEREBY INCORPORATED BY REFERENCE INTO THIS SECTION.
11.3 No Obligation. Alara is not liable to you for any Services provided or) actions taken by any Technology Partner or Integration Partner. Alara is not responsible for ensuring that Integration Partners have properly connected your data feeds to the Alara Gateway. Alara is not responsible for how Primary Data is used by a Technology Partner after it is transmitted via the Alara Gateway.
12. LIMITATIONS OF LIABILITY; INDEMNIFICATION
12.1 Disclaimer of Consequential Damages. UNDER NO CIRCUMSTANCES WILL A PARTY BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF IT IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
12.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL ALARA’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE GREATER OF (A) $100, AND (B) THE AGGREGATE AMOUNT OF THE FEES PAID TO ALARA UNDER THE APPLICABLE ORDER FORM INTHE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.
12.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY ALARA TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 12 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
12.4 Indemnification by You. Except to the extent Alara has a duty to indemnify you under Section 12.5, to the fullest extent allowed by applicable law, you will indemnify, defend, and hold harmless Alara and its affiliates, and its and their respective officers, stockholders, directors, partners, agents, and employees against any and all claims, demands, suits, or actions, actual or threatened by a third party (“Claims”), arising out of or relating to: (a) any Unauthorized Use or other misuse of the Alara Offerings in violation of this Agreement; (b) your breach of this Agreement; (c) violation of applicable law; or (d) your gross negligence or willful misconduct whether such action or inaction was committed by you, anyone directly or indirectly employed by you, or anyone for whose acts you may be liable in the performance or nonperformance of your obligations under this Agreement.
12.5 IP Infringement. To the fullest extent allowed by applicable law, Alara will indemnify, defend, and hold you and your affiliates and respective officers, directors, and employees against any and all Claims arising out of or relating to any actual or threatened allegation that the authorized use of any Alara Offerings infringe or misappropriate any intellectual property or proprietary rights of a third party. If any of the Alara Offerings, or operation or use thereof, has become or is likely to become, in whole or in part, the subject of any claim of infringement, Alara may, at its option and expense, (a) procure you the right to continue using and receiving the applicable Alara Offerings; (b) replace or modify the applicable Alara Offerings to make it non-infringing; or (c) terminate this Agreement or the applicable Order Forms and all use of the applicable Alara Offerings upon notice to you. This Section states your exclusive remedy, and our sole liability and obligation, for any claim of any nature related to infringement or misappropriation of intellectual property.
13. GENERAL
13.1 Relationship. Alara will be and act as an independent contractor (and not as the agent or representative of you) in the performance of this Agreement.
13.2 Promotional Materials. Unless and until you opt-out, Alara may add you to its customer lists and identify you as a user of the Alara Offerings in its promotional materials; provided that your name will not be used in a manner that would reasonably be perceived as your endorsement of the Alara Offerings.
13.3 Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees in writing to assume and fulfill all of the assigning party’s obligations under this Agreement.
13.4 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to (a) Alara at 55 Post Road West 2nd Floor Westport, CT 06880; or (b) you at the address you provided upon your account registration with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given to the receiving party two business days following the date of mailing or one business day following delivery to a courier.
13.5 Force Majeure. Alara will not be liable for, or be considered to be in breach of, or default under thisAgreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Alara’s reasonable control, so long as Alara uses all commercially reasonable efforts to avoid or remove such causes of non-performance.
13.6 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Delaware, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. All disputes arising under this Agreement including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in New Castle County, Delaware before three arbitrator(s). The arbitration shall be administered by JAMS pursuant to its StreamlinedArbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude either party from seeking provisional or equitable remedies from a court of appropriate jurisdiction.
13.7 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
13.8 Protected Activity Not Prohibited. Nothing in this Agreement shall in any way prohibit Alara from engaging in filing a charge, complaint, or report with, or otherwise communicating, cooperating, or participating in any investigation or proceeding that may be conducted by any federal, state or local government agency or commission or otherwise disclosing information about unlawful conduct to relevant authorities to the extent required by or protected by law.
13.9 Export Control Laws. Each party shall comply with all United States and applicable foreign export control laws or regulations applicable to its performance under this Agreement. You may not remove or export from the United States or allow the export or re-export of the Alara Offerings or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
13.10 No Government Rights. As defined in FAR section 2.101, the Alara Offerings and Documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1)and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
13.11 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If the Alara Offerings under this Agreement are found to be illegal, unenforceable, or invalid, your right to use the Alara Offerings will immediately terminate.
13.12 Entire Agreement. This Agreement, including any Order Form(s) executed by the parties from time to time, are the final and complete expression of the agreement between these parties regarding the licensing of the Alara Offerings. This Agreement supersedes and governs all previous oral and written communications regarding these matters, all of which are merged into thisAgreement. No employee, agent, or other representative of Alara has any authority to bind Alara with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Alara will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by you in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Alara specifically agrees to such provision in a writing signed by an authorized agent of Alara.
